Changes to legislation, court practice news and much more
Resolution of the Cabinet of Ministers No. 1048 of 29 September 2023 established the State Service for Children
As a central executive authority, the Service will implement state policy on protecting children’s rights, social support for families with children, and the development of family-based care and adoption.
The main tasks of the Service are:
- implementing state policy on protecting the rights of children, including orphans and children deprived of parental care and persons from among them, social support for families with children, children’s recreation and rest, and the development of family-based care and adoption;
- within the powers defined by law, monitoring compliance with the legislation on protecting children’s rights by local executive authorities, local self-government bodies, enterprises, institutions and organisations of all forms of ownership, and individuals;
- coordinating social support and social services for families with children, children under guardianship or custody, foster families, families of foster carers, family-type children’s homes and adoptive parents;
- within the powers defined by law, coordinating and providing methodological support to the units of local state administrations, local self-government bodies, social service providers, social work entities and other entities supporting families with children, including on responsible parenthood, teaching parents the skills needed for the all-round development and upbringing of children, and the development of family-based care.
On 5 October 2023, Law No. 3265-IX of 14 July 2023 «On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Protection of Ownership and Other Property Rights to Real Estate Belonging to Children and Wards» entered into force
Part two of Article 177 of the Family Code of Ukraine now reads as follows:
«2. Parents (adoptive parents) or the guardian of a minor child may not, without the permission of the guardianship authority:
1) waive the rights to the property of a minor child, including property rights to real estate subject to state registration;
2) issue written undertakings on behalf of a minor child;
3) enter into transactions concerning:
- a residential property and/or the land plot on which it is located, owned or used by a minor child;
- the alienation (including by exchange or contribution (transfer) to the authorised (share) capital (unit fund) of a legal entity or as an entry, membership and/or target contribution of a cooperative member), division or allocation of real estate, an object of unfinished construction, a future real estate object or other valuable property, in particular vehicles, owned by a minor child».
The following legal acts have also been brought in line with the Family Code of Ukraine:
- part one of Article 71 of the Civil Code of Ukraine has been restated;
- parts three and six of Article 17 of the Law «On Childhood Protection» have been restated and a new part has been added;
- the title and parts one to three of Article 12 of the Law «On the Basics of Social Protection of Homeless Persons and Street Children» have been restated.
In case No. 910/5958/20, the Supreme Court ruled that the absence of a violation of the claimant’s rights and legitimate interests is sufficient grounds to dismiss the claim.
In this dispute, a tax authority sued a private legal entity to invalidate a contract for the supply of products to a buyer. The claim was based on the contract’s alleged non-compliance with Ukrainian law, namely Article 228 of the Civil Code of Ukraine.
The lower courts dismissed the claim under Articles 5 and 14 of the Commercial Procedure Code of Ukraine, assessing the method of protection chosen by the claimant for a violated right (interest) it did not have and assessing the merits of the dispute. They found that the tax authority (the claimant), which was not a party to the contract, sought to invalidate it but did not ask for the consequences of invalidity to be applied.
The panel of judges of the Commercial Cassation Court of the Supreme Court took into account that a person who sues to invalidate a contract (or some of its provisions) must prove specific facts of a violation of its property rights and interests: it must prove that its rights and legitimate interests are directly violated by the disputed contract and that invalidating it (or some of its provisions) will protect and restore the property rights of the interested person. The court also noted that the absence of a violation of the claimant’s rights and legitimate interests is an independent and sufficient ground to dismiss the claim.
The Commercial Cassation Court therefore concluded that once the courts establish that the claimant has no violated right, they need not assess whether the disputed transaction complies with the law. Accordingly, the first and second instance courts should have dismissed the claim solely because there was no violation of the claimant’s civil rights and legitimate interests, without assessing the method of protection chosen by the claimant or the merits of the dispute.
In case No. 752/11324/14-ц, the Supreme Court set out its legal position on concluding a settlement agreement during enforcement proceedings.
Under Article 19 of the Law of Ukraine «On Enforcement Proceedings», the parties may, in accordance with procedural law, conclude a settlement agreement during the enforcement of a judgment, which is approved (recognised) by the court that issued the enforcement document.
The previous version of the Civil Procedure Code of Ukraine allowed a settlement agreement both before and during enforcement proceedings. However, the current version, namely part 1 of Article 434, clearly states that the right to conclude a settlement agreement during enforcement may only be exercised in the course of the enforcement of a judgment, i.e. when enforcement proceedings have been opened.
Accordingly, the parties may conclude a settlement agreement only during the enforcement of the judgment. The court’s approval of such an agreement is grounds for closing the enforcement proceedings.
In this Resolution, the Supreme Court also pointed out that the persons authorised to apply to the court for approval of a settlement agreement are the state or private enforcement officers handling the relevant enforcement proceedings. If the parties apply directly to the court with a written application for a settlement agreement during the enforcement of a judgment, the court must return it without consideration, since the application has been signed by persons not entitled to sign it.
Draft Law «On Amendments to the Law of Ukraine «On Railway Transport» on Certain Issues of Railway Safety Management» of 04.10.2023
The Draft Law of Ukraine «On Amendments to the Law of Ukraine «On Railway Transport»» (the draft law) was developed to create legal certainty about the term «safety management system», define its content and the central executive authority responsible for drafting the regulation on the safety management system, and establish an exhaustive list of grounds for prohibiting the operation of railway rolling stock and railway infrastructure.
The draft law provides for amendments:
- to Article 1 of the Law of Ukraine «On Railway Transport», defining the safety management system as a documented set of methods, organisational approaches and measures approved by the company’s management and applied by the company to ensure railway safety;
- to Article 11, obliging companies that operate railway rolling stock or railway infrastructure to introduce a safety management system and making the company’s head responsible for introducing and implementing it.
In addition, the draft law adds a new Article 14-1 to the Law of Ukraine «On Railway Transport», setting out the list of grounds for prohibiting the operation of railway rolling stock and railway infrastructure.
Draft Law «On Amendments to Article 14 of the Law of Ukraine «On Diplomatic Service» on the Procedure for Appointment to Diplomatic Posts» of 04.10.2023
The draft law aims to introduce a procedure under which the candidates proposed by the Minister of Foreign Affairs of Ukraine for the posts of Ambassador Extraordinary and Plenipotentiary of Ukraine, Ambassador Extraordinary and Plenipotentiary of Ukraine resident in Kyiv, Permanent Representative of Ukraine to an international organisation, Representative of Ukraine to an international organisation and Head of the Mission of Ukraine to an international organisation are agreed by the Committee on Foreign Policy and Inter-Parliamentary Cooperation.
It is proposed to add two new paragraphs to part three of Article 14 of the Law of Ukraine «On Diplomatic Service», reading as follows:
«The Minister of Foreign Affairs of Ukraine submits to the President of Ukraine proposals on candidates for appointment to the posts of Ambassador Extraordinary and Plenipotentiary of Ukraine, Ambassador Extraordinary and Plenipotentiary of Ukraine resident in Kyiv, Permanent Representative of Ukraine to an international organisation, Representative of Ukraine to an international organisation and Head of the Mission of Ukraine to an international organisation after consultations in the Committee of the Verkhovna Rada of Ukraine on Foreign Policy and Inter-Parliamentary Cooperation on the candidates for these posts and the committee’s approval of these candidates.
The Minister of Foreign Affairs of Ukraine holds consultations on the candidates at a regular meeting of the Committee of the Verkhovna Rada of Ukraine on Foreign Policy and Inter-Parliamentary Cooperation».
